On June 02, 2010 a Answer was filed involving a dispute between Hagen, Laurance, and 3M Company, 4520 Corp., Inc.,, A & A Mechanical Contractors Inc., A & A Sheet Metal, Aberthaw Construction Company, Acco Engineered Systems, Inc., A.E. Knowles Corporation, Aire Sheet Metal Inc., Air Systems Mechanical Contractor, A.J. Peters & Son, Aladdin Heating Corporation, Albay Construction Company, Allied Painters, Inc., Allied Sprinkler Company, Inc., Anderson, Rowe & Buckley, Inc., Applied Support Systems, Inc., A.R.B. Mechanical, Armaral Plumbing, Associated Insulation Of California, Atlas Heating And Ventilating Company, Ltd., Bailey Plumbing, Heating & Sheet Metal, Barnes Construction Co., Bay Cities Crane And Rigging, Inc., Bayer Cropscience Inc., Bayer Cropscience, Inc.,, B H P Minerals International, Inc., Bigge Crane And Rigging Co., Bragg Investment Company, Inc., B.T. Mancini Co., Inc., Buttner Corp., Cahill Contractors, Inc., Carrier Corporation, Cbs Corporation, A Delaware Corporation, Fka, Cbs Corporation (F K A Viacom Inc., F K A, C.C. Moore & Co. Engineers, Certainteed Corporation, Chevron U.S.A. Inc., Chicago Bridge & Iron Company, Chicago Bridge & Iron Company,, Cleaver-Brooks, Inc., Coastal West Ventures, Inc., Commair Mechanical Services, Conocophillips Company, Consolidated Insulation, Inc., Cooper Brothers, Inc., Corey Contractors, Cosco Fire Protection, Inc., Coscol Petroleum Corporation, Coscol Petroleum Corporation Erroneously Named And, Crane Co., Crowley Plumbing, Crown Cork & Seal Company, Inc., C & R Plastering, Inc., Cupertino Electric, Inc., Dana Companies, Llc, Devcon Construction, Inc., Dillingham Construction, N.A., Inc., Does 1-8500, Domco Products Texas Inc. Erroneously Sued, Domco Products Texas, L.P., Dome Construction Corporation, Douglass Insulation Company, Inc., D.W. Nicholson Corporation, D. Zelinsky & Sons, Inc., Early Engineering Corporation, Incorporated, East Bay Sheet Metal Works, East Bay Sheet Metal Works, A Dissolved Corp., E.C. Braun Company, Inc., Emerick Sheet Metal Co., Emil J. Weber Electric Co., E. Mitchell, Inc., Enterprise Plumbing, Inc., Erwin Mechanical Inc., Ex- Fm, Inc. (Fka Fischbach And Moore Electric,, Exxon Mobil Corporation, Faye Plumbing, Fdcc California, Inc., Finzel Plumbing Company, Fischbach And Moore, Incorporated, Nka Ex-Fm, Inc., Fluor Corporation, Foley-Pmi, Inc., Foster Wheeler Llc, Foster Wheeler Llc (Fka Foster Wheeler, F.P. Lathrop Construction Company, F.P. Lathrop Construction Company,, Frank Bonetti Plumbing, Inc., Frederick Meiswinkel, Inc., F.W. Spencer & Son, Inc., Garlock Sealing Technologies, Llc, General Cable Corporation, General Electric Company, George F. Schuler, Inc., George M Robinson & Co., George Townsend & Associates, George Wilson Company, Inc., Georgia-Pacific Corporation, Georgia-Pacific Llc, Giampolini & Co., Golden Gate Drywall, Inc., Granite Rock Company, Grinnell Corporation, Grinnell Llc,, Haas And Haynie Corporation, Haas & Haynie Corporation, Hamilton Materials, Inc., Hansen Plumbing And Heating, Hanson Permanente Cement, Inc. Formerly Known As, Harry Lee Plumbing & Heating, H.B. Fuller Company, H & C Investment Associates, Inc., Hensel Phelps Construction Co, Hensel Phelps Construction Co., Herrick Iron Works, Honeywell International, Inc., Honeywell International Inc., Fka Alliedsignal,, Hopeman Brothers, Inc., H.T.R. Enterprises, Inc., Ingersoll-Rand Company, Jacobs Constructors, Inc., James A. Nelson Co., Inc., James Nelson, Johnson Controls, Inc., J.R. Simplot Company, J.T. Thorpe, Inc., J.T. Thorpe & Son, Inc., J.W. Mcclenahan Company, Inc., Kaiser Gypsum Company, Inc., Kelly-Moore Paint Company, Inc., Kentile Floors, Inc., Kent M. Lim & Company, Inc., Kinetic Systems, Inc., Kramer Acoustics, Laub Sheet Metal Works, Leonard Construction Company, Lewis Air & Refrigeration, L.J. Kruse Company, Macarthur Company, Madlem Mechanical, Inc., Marcal Associates, Ltd., Marconi Plastering Company, Inc., Marina Heating & Air Conditioning, Marina Plumbing Company, Mauch Sheet Metal, Mayta & Jensen, Mcguire & Hester Corporation, Mckeon Construction, Mcmillan Brothers Electric, Inc., Metropolitan Life Insurance Company, Monterey Mechanical Company, Norcal Scaffolding, N. P. I. Corporation, N.V. Heathorn, Inc., Oakfabco, Inc., Ocean Shore Iron Works, O.C. Mcdonald Co., Inc., O H I Company, Inc., Oscar E. Erickson, Inc., Owens-Illinois, Inc., Owens Mckeon Construction, Pacific Coast Builders, Pacific Gas & Electric Company, Pacific Mechanical Corporation, Parker-Hannifin Corporation, Parsons Infrastructure & Technology Group Inc., Peerless Stucco Co., Perini Corporation, Perini Land And Development Company, Peter Kiewit Sons, Inc., Peter Lim Construction, Pierce Enterprises, Pierce Lathing Company Dba Pierce Enterprises, Power Refrigeration Company, Powers Process Controls, Quality Air Conditioning, Inc., Quintec Industries, Inc., Raphael Company, Raymond Interior Systems-North, Ray Oil Burner Co., A Dissolved Corporation,, Ray Oil Burner Company, Inc., Republic Supply Company, Rmc Pacific Materials, Inc., Robertshaw Controls Company, Rodoni Becker, Rosendahl Corporation, Rountree Plumbing & Heating Inc., Rudolph And Sletten, Inc., Santa Fe Braun, Inc. As Successor-In-Interest To, Schneider Electric Usa, Inc. (Fka Square D, Scott Co. Of California, Scott Norman Mechanical Company, Scott Technologies, Inc., Sequoia Ventures Inc., S F L, Inc., Shell Oil Company, Sierra Pacific Industries, S.J. Amoroso Construction Co., Inc., Stanford Plumbing, Stolte Inc., Sugden Engineering Co., Swinerton Builders, Temporary Plant Cleaners, Inc., Texaco, Inc., The Goodyear Tire & Rubber Company, The Jack Dymond Company, The Linford Company, Therma Corporation, Therma Mechanical, Thermon Manufacturing Co., Thomas Air & Refrigeration Inc., Thomas Dee Engineering Company, Timec Company, Inc., Tosco Corporation, Tosco Corporation Erroneously Sued And Served As, Trane U.S., Inc., Erroneously Sued As Trane U.S.,, Trane Us, Inc. Fka American Standard, Inc., Turner Construction Company, Tutor-Saliba Corporation, Union Oil Company Of California, University Mechanical And Engineering Contractors,, Valley Sheet Metal, Van-Mulder Sheet Metal, Inc., Vogel & Associates, Walnut Creek Sheet Metal, Furnace & Air, Washington Group International, Inc., Western Allied Corporation, Western Asbestos Company, Western Insulation, Inc., Western Macarthur Company, Western Plumbing & Heating Co., Inc., W.G. Thompson, Inc., Wheatley-Jacobsen, Inc., Williams & Burrows, Inc., Wilson Construction Company, W.L. Hickey Sons, Inc., Wright Schuchart Harbor, Wright Schuchart Harbor Company, Yamas Controls Group Inc., Zurn Industries, Llc, for ASBESTOS in the District Court of San Francisco County.
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2S Oo aw DA Rh RB WwW NY MN Nt IA vA fF YW DP se S S&S BY Dw FW NY S 28 CARLE, MACKIE, >OWER & ROSS up CARLE, MACKIE, POWER & ROSS LLP WILLARD A. CARLE, TI SBN 95703 PHILIP J. TERRY, SBN 148144 ELECTRONICALLY 100 B Street, Suite 400 FILED Santa Rosa, California 95401 Superior Court of California, Telephone: (707) 526-4200 County of San Francisco Facsimile: (707) 526-4707 OCT 06 2010 Clerk of the Court Attomeys for Defendant N.P.1. Corporation BY: CHRISTLE ARRIOLA Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO LAURANCE HAGEN, Case No. CGC-10-275582 Plaintiff, v. N.P.L CORPORATION’S ANSWER TO COMPLAINT ASSOCIATED INSULATION OF CALIFORNIA; Defendants as Reflected on Exhibit 1 attached to the Summary Complaint herein; and DOES 1-8500. Defendants. Defendant N.P.I. CORPORATION (herein “Defendant’”) answers Plaintiff's Complaint (herein “Complaint”) on its own behalf and on behalf of no other Defendant or entity as follows: Pursuant to California Code of Civil Procedure section 431.30(d), Defendant denies generally each and every allegation of the Complaint. FIRST AFFIRMATIVE DEFENSE Neither the Complaint nor any purported cause of action alleged by the Plaintiff therein states facts sufficient to constitute a cause of action against Defendant. SECOND AFFIRMATIVE DEFENSE Plaintiff's action, and each alleged cause of action, is barred by the applicable statute of limitations, including but not limited to California Code of Civil Procedure, sections 335.1, Case No, CGC-10-275582 Answerwo OC DM HR HR HN met i o il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CARLE, MACKIE, 2OWER & ROSS LLP 337(1), 338(1), 338(a), 338(d), 339(1), 340(a), (b) and (c), 340.2, 343, 353, 583.110, 583.210, $83.310 and 583.410 and California Commercial Code, section 2725. THIRD AFFIRMATIVE DEFENSE Any loss, injury or damage incurred by Plaintiff was proximately caused by the negligent or willful acts or omissions of parties whom Defendant neither controlled nor had the right to control, and was not proximately caused by any acts, omissions or other conduct of Defendant. FOURTH AFFIRMATIVE DEFENSE The tortious conduct alleged in the Complaint as to Defendant, if any, was not a substantial factor in bringing about the alleged injuries, and therefore was not a contributing cause, but was superseded by tortious and/or intentional conduct by one or more third parties whose misconduct was an independent, intervening, sole and proximate cause of Plaintiff's alleged injuries or damages, if any. FIFTH AFFIRMATIVE DEFENSE At all relevant times, Plaintiff knowingly, voluntarily and unreasonably undertook to encounter each of the risks and hazards alleged in the Complaint, and this assumption of said risks bars any recovery herein, or diminishes Plaintiff's recovery to the extent that Plaintiff's damages are attributable to Plaintiff's assumption of risk. SIXTH AFFIRMATIVE DEFENSE The alleged defect and/or dangerous condition, if any, was so trivial in nature that it could not be considered a dangerous and/or a defective condition, thus barring any action by Plaintiff against Defendant. SEVENTH AFFIRMATIVE DEFENSE Plaintiff named Defendant in the Complaint without reasonable identification of whal act, if any, Defendant participated in, and without a reasonable investigation. Pursuant to Code of Civil Procedure section 128.7, Defendant requests reasonable expenses, including attorneys’ fees incurred by Defendant as a result of ihe maintenance by Plaintiff of this bad faith action. EIGHTH AFFIRMATIVE DEFENSE The Complaint and any alleged cause of action therein are barred by laches due to Case No, CGC-10-275582 Answerec ew WN KH A eR we em Beem SR RP BS ES FEAR a ED EE S 28 CARLE, MACKIE, POWER & ROSS LLP Plaintiff's unreasonable delay in commencing said action without any good cause therefore, and further, as a direct and proximate result of such delay, Defendant has been prejudiced. NINTH AFFIRMATIVE DEFENSE Defendant denies any and ail liability as a successor, successor in business, successor in product line or a portion thereof, assign, predecessor, predecessor in business, predecessor in product line or a portion thereof, parent, “alter ego,” subsidiary, wholly or partially owned, by or the whole or partial owner of or member in any entity researching, studying, manufacturing, fabricating, designing, labeling, assembling, distributing, leasing, buying, offering for sale, selling, inspecting, servicing, installing, contracting or installation, repairing, marketing, warranting, rebranding, manufacturing for others, packaging and advertising a certain substance, the generic name of which is asbestos. TENTH AFFIRMATIVE DEFENSE The Complaint fails to state facts sufficient to constitute a cause of action against ae, Defendant, to the extent it asserts and bases a claim upon “alternative,” “market share,” or “enterprise liability.” ELEVENTH AFFIRMATIVE DEFENSE Defendant has never possessed a substantial percentage of the market for the asbestos- containing products which allegedly caused Plaintiffs injuries. Further, Plaintiff has failed to join in this action Defendants representing a substantial share of said market. Therefore, Defendant should not be liable to Plaintiff based on its alleged percentage share of the applicable market. TWELFTH AFFIRMATIVE DEFENSE Neither the Complaint nor any purported cause of action alleged therein states facts sufficient to entitle Plaintiff to an award of punitive damages against Defendant. THIRTEENTH AFFIRMATIVE DEFENSE The imposition of any punitive damages in this matter would deprive Defendant of its property without due process of law under the California Constitution and United States Constitution, Case No. CGC-10-275582 Answerec ey DA HM BRB WY YD om BR mt SR RE BR FES eE TAH FG RE S 28 (CARLE, MACKIE, ?OWER & ROSS Luv FOURTEENTH AFFIRMATIVE DEFENSE The imposition of any punitive damages in this matter would violated the United States Constitution’s prohibition against laws impairing the obligation of contracts. FIFTEENTH AFFIRMATIVE DEFENSE The imposition of any punitive damages in this matter would constitute a criminal fine or penalty and should, therefore, be remitted on the ground that the award violates the United States Constitution. SEXTEENTH AFFIRMATIVE DEFENSE At all times relevant hereto, the knowledge of Plaintiff's employer(s) was superior to that of Defendant with respect to possible health hazards associated with Plaintiff's employment, and, therefore, if there was any duty to warn Plaintiff, or to provide protection to him, it was the duty of said employers, not of Defendant, and the breach of that duty was an intervening and/or superseding cause of the injuries allegedly sustained by Plaintiff, SEVENTEENTH AFFIRMATIVE DEFENSE In the event that it is shown the Plaintiff used any product or material, as alleged in the Complaint, which gave rise to the injuries as set forth therein, the same was unforeseeably misused, abused, modified, altered or subjected to abnormal use. EIGHTEENTH AFFIRMATIVE DEFENSE Plaintiff and his employer(s) were sophisticated users of products containing asbestos and had, or should have had, adequate knowledge of the dangers and risks associated with using or working around asbestos. NINTEENTH AFFIRMATIVE DEFENSE Plaintiff should have taken action to minimize or eliminate damages, and therefore, Plaintiff is precluded from recovering damages, or his damages are reduced, by operation of the doctrine of avoidable consequences. TWENTIETH AFFIRMATIVE DEFENSE Plaintiff unreasonably failed to mitigate his injuries and/or damages, if any. A Case No, CGC-10-275582 AnswerOo Oo HW DH HW BR WH Nm me = i 12 13 14 15 16 17 18 19 20 2 22 23 24 25 26 27 28 CARLE, MACKIE, POWER & ROSS LLP TWENTY-FIRST AFFIRMATIVE DEFENSE Defendant did not authorize, approve, acquiesce in or ratify the alleged acts or omissions attributed to it in the Complaint. TWENTY-SECOND AFFIRMATIVE DEFENSE Defendant is entitled to a set-off or credit in the amount of any settlement or compromise heretofore or hereafter reached by Plaintiff with any other person or entity for any of Plaintiff's alleged damages. TWENTY-THIRD AFFIRMATIVE DEFENSE California Civil Code sections 1431.1 through 1431.5, provide that the liability of each Defendant for non-economic damages shall be several only and shall not be joint. As a result Defendant, if liable, is only so for the amount of non-economic damages allocated to Defendant in direct proportion to its percentage of fault. TWENTY-FOURTH AFFIRMATIVE DEFENSE The Complaint fails to name both necessary and indispensable parties in whose absence complete relief cannot be accorded among those already parties. Therefore, ihis action must be dismissed, or, alternatively, the action should be stayed pending other appropriate relief by the Court. TWENTY-FIFTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred in whole or in part by the exclusivity principles embodied in California’s Workers’ Compensation Act. TWENTH-SIXTH AFFIRMATIVE DEFENSE Plaintiff's employer’s lack of reasonable care or other wrongful conduct was the sole cause of, or contributed to, Plaintiff's damages. Therefore, Plaintiff's recovery, if any, from Defendant must be reduced by the amount of workers’ compensation benefits paid by or on behalf of such employer. TWENTY-SEVENTH AFFIRMATIVE DEFENSE Defendant owed no duty to Plaintiff with respect to the actions for which liability is alleged in the Complaint. Case No, CGC-10-275582 AnswerOo PR A DA A BR BN om BRN BD mr et a 32 & & € Fhe SF SF SEA ADRES BS 28 CARLE, MACK, PowER & ROSS up TWENTY-EIGHTH AFFIRMATIVE DEFENSE Plaintiff's claims are barred by Plaintiff's contributory and/or comparative negligence and/or assumption of risk, and/or any other affirmative defense asserted herein. TWENTY-NINTH AFFIRMATIVE DEFENSE Defendant is entitled to a set-off of all amounts paid to the Plaintiff by other Defendants pursuant to pro tanto settlements. THIRTIETH AFFIRMATIVE DEFENSE Defendant did not know and had no reasonable grounds for knowing, at the time any of its products containing asbestos were manufactured, at the time Plaintiff was allegedly exposed thereto, or at any other time, that any of said products could be hazardous, and further, Defendant had no reason to know or believe that any of its products could be hazardous, in that any asbestos fibers contained in its products are locked in, encapsulated, and firmly bound and therefore do not release dangerous amounts of asbestos fiber. THIRTY-FIRST AFFIRMATIVE DEFENSE Defendant alleges that Plaintiffs claims are or may be barred in whole or in part by res judicata, collateral estoppel, issue preclusion and/or release. THIRTY-SECOND AFFIRMATIVE DEFENSE The activity alleged in the Complaint, to the extent that it was engaged in by Defendant, if at all, was not ultrahazardous under California law. THIRTY-THIRD AFFIRMATIVE DEFENSE At all times relevant, Defendant’s acts and omissions were in conformity with all government statutes and regulations and all industry standards based upon the state of knowledge existing at the time of the acts or omissions. THIRTY-FOUTH AFFIRMATIVE DEFENSE Defendant had no property interest, ownership or control of any premises at any time during which Plaintiff allege he was exposed to asbestos, and/or injured or damaged by asbestos dust inhalation. it Case No, CGC-10-275582 Answer28 CARLE, MACKIE, POWER & ROSS Lr THIRTY-FIFTH AFFIRMATIVE DEFENSE At all times and places in the Corplaint, Plaintiff was not in privity of contract with Defendant and said lack of privity bars Plaintiff's recovery herein upon any theory of warranty. THIRTY-SIXTH AFFIRMATIVE DEFENSE Plaintiff is barred from recovery in that all products produced by Defendant were in conformity with the existing state-of-the-art, and as a result, these products were not defective in any manner. THIRTY-SEVENTH AFFIRMATIVE DEFENSE Defendant refers fo an incorporates herein each and every affirmative defense pleaded by the other parties herein to the extent that such defenses are not inconsistent with the matters stated herein. THIRTY-EIGHTH AFFIRMATIVE DEFENSE Defendant presently has insufficient knowledge or information upon which to form a belief as to whether it may have additional affirmative defenses in the event discovery indicates it would be appropriate. WHEREFORE, Defendant prays: (1) That Plaintiff take nothing by this Complaint; _ (2) That Judgment be entered in favor of Defendant; (3) For recovery of Defendant’s cost of suit; 4) For appropriate credits and set-offs arising out of any payment of workers’ compensation benefits as alleged above; and (5) For such other and further relief as the Court deems just and proper. Dated: October 6, 2010 CARLE, MACKIE, POWER & ROSS LLP Case No. CGC-10-275582 AnswerSC Oe WD HW RB WB Rm Bott RR PRB EB BSE RBRA EG BES 27 28 ‘CARLE, MACKIE, POWER & ROSS utp CERTIFICATE OF SERVICE BY ELECTRONIC TRANSMISSION The undersigned hereby certifies as follows: Tam an employee of the law firm of Carle, Mackie, Power & Ross LLP, 100 B. Street, Suite 400, Santa Rosa, California 95401. I am over 18 years of age and am not a party to the within action. On the date indicated below, I served a true copy(ies) of the following document(s): 1. N.P.I. CORPORATION’S ANSWER TO COMPLAINT on the party(ies) in this action by causing Lexis Nexis E-Service program pursuant to Genera! Order No. 158, to transmit a true copy thereof to the email addresses of the following parties: PLEASE SEE ATTACHED SERVICE LIST I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. DATED: October 6, 2010 Aaron Peto) Sharon Reid POS Case No.: CGC-10-275582